Friday, May 18, 2007

I, Viktor Yushchenko, elected by the will of the people as the President of Ukraine, assuming this high office, do solemnly swear allegiance to Ukraine. I pledge with all my undertakings to protect the sovereignty and independence of Ukraine, to provide for the good of the Motherland and the welfare of the Ukrainian people, to protect the rights and freedoms of citizens, to abide by the Constitution of Ukraine and the laws of Ukraine, to exercise my duties in the interests of all compatriots, and to enhance the prestige of Ukraine in the world."

Ukraine's President, Viktor Yuchenko, having previously indicated that he would uphold the determination of Ukraine's Constitutional Court -- faced with prospect that Ukraine's Constitutional Court will rule against him by declaring his presidential decrees dismissing Ukraine's democratically elected parliament unconstitutional -- is now engaged in a campaign designed to undermine Ukraine's Constitution.The president today has indicated that he will ignore the decision of Ukraine's Constitutional Court.

If the Court, as expected , rules that the president's decree was unconstitutional the president will be under pressure to resign.

Viktor Yushchenko has gone to extraordinary efforts to prevent the Court from making a determination. The president, having been informed that the Court was most likely to rule against him, issued decrees dismissing three of the Constitutional Court Judges. The President was hoping that the Court would find itself in a stalemate position, where it would be unable to bring down a ruling on the government's appeal against his earlier decrees, and in doing so would by default leave his original decrees unchallenged.

The president's dismissal of Constitutional Court judges was yesterday overturned by a local court and the judges having been reinstated took up office in Court. The reinstatement of the three Judges has once again given cause for concern by the president.

The Court was expected to announce its decision today (Friday May 18) but failed to do so. The head of Ukraine's Constitutional Court, Ivan Dombrovskyy, tendered his resignation and four of the judges loyal to the president called in sick today.

Yesterday the Court appointed Valeriy Pshenichny, one of the Judges whom Yushchenko had fired earlier this month, as acting head of the Court.

The legality of the president's decrees dismissing Ukraine's Parliament are back on the agenda with all expectations that the Constitutional Court will proceed to rule against the President.

Once the Constitutional Court rules its decision is binding on all parties. There is no right of appeal.

Rather then wait for the ruling of the Court the Office of the president, having previously indicated that he would abide by the Court's rulings, today indicated that the president will now ignore the court. If this is the case the president will be entering into unknown and dangerous territory.

Viktor Yushchenko faces the serious risk of instigating anarchy and constitutional disorder in direct breach of his solemn oath he gave in taking up the office of President and becoming Ukraine's head of State.

The statement made by the Office of the President is tantamount to treason and grounds for impeachment.

The president will face two options: He will either have to resign and seek re-election appealing to the Court of public opinion or he will try and instigate a unconstitutional coup and declare a state of emergency and the restoration of a presidential dictatorship.

Update: There is some decree of ambiguity as to whether the president has in fact advocated such or if it was the actions of an overzealous irresponsible senior member of staff of the office of the president. In any event the president must act to uphold his oath and to protect the reputation of the office of the president.

The statement attributed to the office of the president is tantamount to treason. Viktor Yushchenko must either resign and face review of his actions in the court of public opinion, distance himself from the statements made and dismiss the staff member responsible.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
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The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.